Andrew Jones v. Christopher Zych

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7399

ANDREW TIMOTHY JONES,

Petitioner - Appellant,

v.

CHRISTOPHER ZYCH,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:14-cv-00281-MFU-RSB)

Submitted: January 28, 2020 Decided: April 23, 2020

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,
Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This appeal requires us to decide whether the Supreme Court’s decision in Alleyne

v. United States, 570 U.S. 99 (2013) applies retroactively on collateral review. Based on

the weight of precedent interpreting both Alleyne and the related case Apprendi v. New

Jersey, 530 U.S. 466 (2000), we hold that it does not. Accordingly, we affirm the district

court’s dismissal of Andrew Timothy Jones’s petition for writ of habeas corpus under 28

U.S.C. § 2241.

I.

In 2004, a jury in the U.S. District Court for the Western District of North Carolina

convicted Jones on four charges stemming from two incidents: attempted Hobbs Act

robbery, in violation of 18 U.S.C. § 1951; armed bank robbery, in violation of 18 U.S.C.

§ 2113(d); and two counts of using a firearm in furtherance of a crime of violence, in

violation of 18 U.S.C. § 924(c)(1). 1 The district court sentenced Jones to a total effective

sentence of 497 months’ imprisonment in 2005. Jones received 77 months on the Hobbs

Act and armed bank robbery charges, to run concurrently; 120 consecutive months (10

years) on the first § 924(c) charge relating to the Hobbs Act robbery, which occurred on

March 13, 2003; and 300 consecutive months (25 years) on the second § 924(c) charge

1
The jury also convicted Jones on a fifth charge—bank robbery under 18 U.S.C.
§ 2113(a), as opposed to armed bank robbery under 18 U.S.C. § 2113(d). But that charge
was voluntarily dismissed by the government at sentencing. See generally United States
v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016) (describing § 2113(a) bank robbery as a
lesser-included offense of § 2113(d) armed bank robbery).
2
relating to the armed bank robbery, which occurred on March 21, 2003. Jones is thus

serving more than 41 years in prison.

Relevant here are the § 924(c) charges. Section 924(c) provides that a person who

“uses or carries” a firearm “during and in relation to any crime of violence,” or who

“possesses” a firearm “in furtherance of any such crime,” may be separately convicted of

both the underlying crime of violence and the use, carrying, or possession of that firearm.

18 U.S.C. § 924(c)(1)(A); see United States v. Walker, 934 F.3d 375, 377 (4th Cir. 2019).

Ordinarily, a person convicted of using, carrying, and possessing a firearm during a crime

of violence is subject to a 5-year mandatory minimum. See 18 U.S.C. § 924(c)(1)(A)(i).

But that penalty is increased to a 10-year minimum if the firearm is “discharged.” Id.

§ 924(c)(1)(A)(iii). In addition, under § 924(c)’s recidivist provision, the mandatory

minimum is bumped up to 25 years in the case of any “second or subsequent [§ 924(c)]

conviction,” id. § 924(c)(1)(C)(i) (2000), 2 which must be served consecutively to any other

sentence, see id. § 924(c)(1)(D)(ii).

Here, the indictment did not allege, nor did the jury find, that the firearm in question

was discharged. Nevertheless, in accordance with then-existing law, see Harris v. United

States, 536 U.S. 545 (2002), the district court determined at sentencing that Jones did, in

fact, discharge the firearm during the March 13 attempted Hobbs Act robbery. Hence the

2
This subsection has since been amended. The above-quoted language now reads:
“In the case of a violation of this subsection that occurs after a prior conviction under this
subsection has become final . . . .” First Step Act of 2018, Pub. L. No. 115-391, § 403(a),
132 Stat. 5194, 5221–22.

3
10-year sentence on Jones’s first § 924(c) charge. Jones was then sentenced to 25 years on

the second § 924(c) charge, in connection with the March 21 armed bank robbery, under

the recidivist provision.

Jones challenged the sufficiency of the evidence and the jury instructions on direct

appeal, and we affirmed his conviction in 2006. See United States v. Jones, 201 F. App’x

158, 159 (4th Cir. 2006). About a year later, in 2007, Jones filed a motion to vacate his

conviction under 28 U.S.C. § 2255 on ineffective-assistance-of-counsel and double-

jeopardy grounds. The district court denied his motion, and we denied a certificate of

appealability shortly thereafter. See United States v. Jones, 282 F. App’x 275 (4th Cir.

2008).

On June 2, 2014, Jones filed the instant petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241 in the U.S. District Court for the Western District of Virginia (the

district where he was then confined). 3 In his pro se petition, Jones asserted that his

mandatory 10-year sentence on the first § 924(c) conviction (the one associated with the

March 13 attempted robbery) should be vacated in light of the Supreme Court’s intervening

decision in Alleyne.

3
It appears that Jones is now in custody in South Carolina; he filed a Notice of
Change of Address in the district court shortly after the court issued its opinion that is the
subject of this appeal. However, Jones’s transfer did not render the case moot or deprive
the district court of jurisdiction. See Jones v. Cunningham, 371 U.S. 236, 243–44 (1963)
(citing Ex parte Endo, 323 U.S. 283, 304–07 (1944)); Word v. North Carolina, 406 F.2d
352, 359–60 (4th Cir. 1969).

4
 Recall that at the time of Jones’s sentencing in 2005, Harris—decided by the

Supreme Court in 2002—was controlling law. In Harris, the Supreme Court held that only

facts that increase a statutory maximum sentence, as in Apprendi, are considered

“elements” of a crime that must be submitted to the jury and proven beyond a reasonable

doubt under the Fifth and Sixth Amendments. See Harris, 536 U.S. at 557, 566–68. In

other words, it declined to extend the rationale of Apprendi to reach facts that increase a

mandatory minimum sentence. Id. Thus, in Harris, the Court concluded that “brandishing”

a firearm under § 924(c)(1)(A)(ii)—a close cousin of the “discharging” provision that

triggers a 2-year, rather than a 5-year, increase to the ordinary 5-year mandatory

minimum—was merely a sentencing factor subject to judicial factfinding and a

preponderance-of-the-evidence standard. Id. at 568.

But in 2013, the Supreme Court overruled Harris in Alleyne. The Alleyne Court

held that “Apprendi’s definition of ‘elements’ necessarily includes not only facts that

increase the ceiling, but also those that increase the floor.” Alleyne, 570 U.S. at 107–08.

After Alleyne, any fact that increases the statutory minimum, such as “brandishing” or

“discharging” a firearm, likewise must satisfy Apprendi. See id. at 107–17; see also id. at

115–16 (“The essential point is that the aggravating fact produced a higher range, which,

in turn, conclusively indicates that the fact is an element of a distinct and aggravated

crime . . . . [that] must, therefore, be submitted to the jury and found beyond a reasonable

doubt.”). Accordingly, in his § 2241 petition, Jones argued that his mandatory 10-year

sentence for his conviction on the first § 924(c) charge “should be vacated” in light of

5
Alleyne “because the jury did not find beyond a reasonable doubt that he discharged a

firearm.” Appellant’s Br. 3. 4

The district court dismissed Jones’s § 2241 petition on June 5, 2015. In doing so,

the court held that Jones failed to demonstrate that a motion to vacate his sentence under

28 U.S.C. § 2255 would have been “inadequate or ineffective to test the legality of his

detention,” 28 U.S.C. § 2255(e). See Jones v. Zych, No. 7:14-cv-00281, 2015 WL

3559871, at *2 (W.D. Va. June 5, 2015). This timely appeal followed.

II.

The central issue on appeal is whether the Supreme Court’s decision in Alleyne is

retroactively applicable on collateral review. Before turning to that question, however, we

must address the proper legal framework for determining whether Jones may challenge his

sentence on the first § 924(c) charge under the catchall habeas statute—28 U.S.C. § 2241.

4
Jones also challenged his mandatory 25-year sentence for the second § 924(c)
conviction (the one associated with the March 21 robbery), arguing that it, too, violated
Apprendi under the logic of Alleyne. Although Jones, now represented by counsel, has
abandoned this argument on appeal, it is foreclosed by our precedent in any event. See
generally Almendarez-Torres v. United States, 523 U.S. 224 (1998) (recognizing exception
to Sixth Amendment that permits a sentencing judge, rather than a jury, to make a factual
finding as to a defendant’s prior conviction, even when it increases the statutory maximum
or minimum penalty); Apprendi, 530 U.S. at 490 (characterizing Almendarez-Torres as a
“narrow exception” to the rule that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt”); United States v. Bell, 901 F.3d 455, 467–68 (4th Cir. 2018) (holding
that Alleyne did not eliminate the “Almendarez-Torres exception” for facts that establish a
prior conviction), cert. denied, 140 S. Ct. 123 (2019).

6
We review both questions de novo. Lester v. Flournoy, 909 F.3d 708, 711 (4th Cir. 2018)

(whether a prisoner may challenge his sentence under § 2241 via the savings clause of

§ 2255 “is a question of law that we review de novo”); see Welch v. United States, 136 S.

Ct. 1257, 1264 (2016) (characterizing question of whether a decision applies retroactively

on collateral review as a “legal issue”); see also Braswell v. Smith, 952 F.3d 441, 447 (4th

Cir. 2020) (“The savings clause requirements are jurisdictional, so we independently

examine whether [they are] met.” (internal quotation marks, citation, and alteration

omitted)).

A.

Section 2241 allows federal prisoners to seek a writ of habeas of corpus in the

district in which they are confined. See 28 U.S.C. § 2241. But only in limited

circumstances.

In response to practical problems stemming from the volume of habeas petitions

filed in districts containing federal correctional facilities, Congress enacted 28 U.S.C.

§ 2255, “which channels collateral attacks by federal prisoners to the sentencing court

(rather than to the court in the district of confinement) so that they can be addressed more

efficiently.” In re Jones, 226 F.3d 328, 332 (4th Cir. 2000) (quoting Triestman v. United

States, 124 F.3d 361, 373 (2d Cir. 1997)). Section 2255 requires federal prisoners seeking

to collaterally attack the legality of their sentences to file a motion to vacate in the district

in which they were sentenced, instead of a traditional petition for a writ of habeas corpus

7
in their district of confinement under § 2241. See 28 U.S.C. § 2255(a). 5 However, because

§ 2255 was “intended to afford federal prisoners a remedy identical in scope to federal

habeas corpus,” Davis v. United States, 417 U.S. 333, 343 (1974), rather than to limit their

rights to collaterally attack their convictions and sentences, In re Jones, 226 F.3d at 332,

Congress included a so-called “savings clause” in § 2255. Under the savings clause, a

federal prisoner may petition for habeas relief under § 2241 when § 2255 proves

“inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e).

Importantly, federal prisoners such as Jones, who have already filed one

unsuccessful § 2255 motion, are generally barred from taking a second bite at the apple

unless they can satisfy the “gatekeeping provisions” set forth in 28 U.S.C. § 2255(h). 6 See

Lester, 909 F.3d at 711. If they cannot satisfy those provisions, then their last hope is to

file a traditional § 2241 petition via § 2255’s savings clause. See id.

In our foundational In re Jones decision, we outlined a three-part test for

determining whether § 2255 is “inadequate or ineffective to test the legality” of a federal

5
Section 2255(a) provides that a petitioner “claiming the right to be released upon
the ground that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a).
6
Section 2255(h) requires prisoners to receive permission from a court of appeals
before filing a “second or successive” petition, which must be based on either (1) “newly
discovered evidence,” or (2) “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.
§ 2255(h)(1)–(2). In this case, Jones does not point to newly discovered evidence; instead,
he relies upon a new rule of constitutional law, namely Alleyne.

8
prisoner’s conviction, see 226 F.3d at 333–34, thereby triggering the savings clause set

forth in 28 U.S.C. § 2255(e). And when the district court denied Jones’s § 2241 petition

in this case in 2015, we had yet to apply the savings clause in the sentencing context. See

United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008) (“Fourth Circuit precedent

has likewise not extended the reach of the savings clause to those petitioners challenging

only their sentence.” (citing In re Jones, 226 F.3d at 333–34)). Thus, in denying Jones’s

§ 2241 petition here, the district court relied primarily on Jones’s failure to establish “how

a change in substantive law made it legal to possess a firearm during and in relation to a

crime of violence, which are the convictions for the sentences presently challenged.”

Jones, 2015 WL 3559871, at *2 (emphasis added); 7 see also In re Jones, 226 F.3d at 334

(requiring, as second element of three-part test, that there be a change in substantive law

subsequent to the prisoner’s direct appeal and first § 2255 motion “such that the conduct

of which the prisoner was convicted is deemed not to be criminal”).

Three years later, however, we decided United States v. Wheeler, 886 F.3d 415 (4th

Cir. 2018), in which we extended In re Jones and applied it in the sentencing context. See

id. at 427–28; see also Lester, 909 F.3d at 711 (“More recently, in Wheeler, we ruled that

a prisoner may use § 2255’s savings clause to challenge not just an unlawful conviction,

7
Alternatively, the district court reasoned that it was “unlikely” that Jones would
be afforded relief “many years after his conviction became final” in any event, as “Alleyne
[had] not been held to apply retroactively to cases on collateral review.” Jones, 2015 WL
3559871, at *2 (citing United States v. Stewart, 540 F. App’x 171, 172 n.* (4th Cir. 2013)).
As we hold below after setting forth the appropriate framework to guide our savings-clause
analysis in the sentencing context, the district court was correct in its assessment as to the
retroactivity of Alleyne.

9
but also a defective sentence.”). Under Wheeler, § 2255 is inadequate and ineffective to

test the legality of a prisoner’s sentence if the following four conditions are met:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court
established the legality of the sentence;
(2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the
aforementioned settled substantive law changed and was deemed to apply
retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)
for second or successive motions; and
(4) due to this retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defect.

886 F.3d at 429.

On appeal, the parties agree that Wheeler sets forth the appropriate test, and no one

disputes that the first requirement is satisfied: At the time of Jones’s sentencing in 2005,

and per Harris, a judge’s finding by a preponderance of the evidence that a firearm was

discharged during the commission of a crime of violence was sufficient to trigger a

statutorily increased mandatory minimum under 18 U.S.C. § 924(c) without running afoul

of Apprendi. Likewise, there is no question that the first part of the second Wheeler

requirement is met here. Harris was not only the law of the land at the time of Jones’s

sentencing, but also at the time of his direct appeal and first § 2255 motion. Only years

later, in 2013, did a change in the law occur, when the Supreme Court overruled Harris in

Alleyne. After Alleyne, and consistent with Apprendi, the jury must find that a firearm was

discharged, and it must do so beyond a reasonable doubt.

But what about the latter half of the second Wheeler requirement? Has Alleyne been

“deemed to apply retroactively on collateral review”? Applying the retroactivity

framework set forth in the Supreme Court’s plurality opinion in Teague v. Lane, 489 U.S.
10
288 (1989), we hold that it has not. Accordingly, we affirm the district court’s dismissal

of Jones’s § 2241 petition. Because Jones cannot satisfy § 2255’s savings clause, § 2255

is the exclusive mechanism through which Jones may seek collateral relief.

B.

Generally, “new constitutional rules of criminal procedure” do not apply to “cases

which have become final before the new rules are announced.” Teague, 489 U.S. at 310.

But “Teague and its progeny recognize two categories of decisions that fall outside this

general bar on retroactivity for procedural rules.” Welch, 136 S. Ct. at 1264. The first

involves new “substantive rules.” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351

(2004)); see Teague, 489 U.S. at 307, 311. The second involves “new ‘watershed rules of

criminal procedure,’ which are procedural rules ‘implicating the fundamental fairness and

accuracy of the criminal proceeding.’” Welch, 136 S. Ct. at 1264 (quoting Saffle v. Parks,

494 U.S. 484, 495 (1990)); see Teague, 489 U.S. at 311–13.

Because the second category is “extremely narrow,” Schriro, 542 U.S. at 352, the

substantive-versus-procedural determination is critical:

“A rule is substantive rather than procedural if it alters the range of conduct
or the class of persons that the law punishes.” Schriro, 542 U.S., at
353 . . . . “This includes decisions that narrow the scope of a criminal statute
by interpreting its terms, as well as constitutional determinations that place
particular conduct or persons covered by the statute beyond the State’s power
to punish.” Id., at 351–352 . . . . Procedural rules, by contrast, “regulate only
the manner of determining the defendant’s culpability.” [Id.] at
353 . . . . Such rules alter “the range of permissible methods for determining
whether a defendant’s conduct is punishable.” Ibid. “They do not produce
a class of persons convicted of conduct the law does not make criminal, but

11
 merely raise the possibility that someone convicted with use of the
invalidated procedure might have been acquitted otherwise.” Id. at 352 . . . .

Welch, 136 S. Ct. at 1264–65. In Welch, the Supreme Court emphasized that this threshold

inquiry—and thus application of the first Teague exception—turns on the “function” of the

new rule, not its “underlying constitutional source.” Id. at 1265 (citing Schriro, 542 U.S.

at 351–53).

1.

As a preliminary matter, we conclude that the Alleyne rule is procedural and so does

not fall within the first category of cases recognized by Teague and its progeny.

In Schriro, the Supreme Court addressed whether its decision in Ring v. Arizona,

536 U.S. 584 (2002) announced a substantive or procedural rule under the Teague

framework. Ring involved a challenge to Arizona’s capital sentencing scheme, which, in

violation of Apprendi, allowed judges to make findings as to aggravating factors that were

required in order to impose the death penalty under state law. In rejecting Schriro’s

argument that Ring was substantive because “it modified the elements of the offense for

which he was convicted,” the Supreme Court emphasized that Ring’s holding that a fact

must be found by a jury if state law makes it essential to the death penalty was “not the

same” as the Supreme Court making a certain fact essential to the death penalty. Schriro,

542 U.S. at 354. “The former was a procedural holding; the latter would be substantive.”

Id.

12
 Like Ring, Alleyne involves an application of Apprendi. Yet Ring only applied the

decision-maker aspect of Apprendi; it did not implicate its rationale with respect to the

appropriate burden of proof, as was the case in Alleyne. Thus, Schriro is not directly

controlling here.

Nevertheless, our precedent fills in the gap. In United States v. Sanders, 247 F.3d

139 (4th Cir. 2001), we characterized Apprendi itself as a procedural rule, because “it

dictates what fact-finding procedure must be employed to ensure a fair trial.” Id. at 147.

Because Alleyne operates as a “logical extension” of Apprendi from maximum to minimum

sentences, Butterworth v. United States, 775 F.3d 459, 467 (1st Cir. 2015), the same result

must obtain here: Alleyne is not substantive. See id. at 465–66 (holding that the first

Teague exception was “just as ‘patently inapposite’ to the rule of Alleyne as it was to

Apprendi, because requiring juries to find [facts] leading to higher mandatory minimums

beyond a reasonable doubt ‘neither places any particular type of conduct beyond the reach

of the criminal law nor pretermits any particular type of punishment for a specific class of

defendants’” (quoting Sepulveda v. United States, 330 F.3d 55, 58 (1st Cir. 2003))); cf.

Hughes v. United States, 770 F.3d 814, 818 (9th Cir. 2014) (“Every circuit court to address

whether Apprendi applies retroactively . . . has held that it does not.”).

In rebuttal, Jones contends that the Supreme Court’s decision in Welch

fundamentally altered the state of play with regard to Teague’s retroactivity analysis by

focusing on the function of the new rule, rather than its source. Under Welch, Jones says,

the Alleyne rule is clearly substantive despite its Sixth Amendment underpinnings, and we

should therefore reject any pre-Welch authority as non-binding or unpersuasive.

13
 Jones is wrong on both fronts. For one thing, Welch cites directly to Schriro—the

very case that Jones cites as an example of pre-Welch, source-dependent precedent—in

support of the proposition that it is the function of the rule that matters. See Welch, 136 S.

Ct. at 1265 (citing Schriro, 542 U.S. at 351–53).

Furthermore, the function of the rule at issue in Welch is distinguishable from the

function of the Alleyne rule. In Welch, the Supreme Court held that the rule announced in

Johnson v. United States, 135 S. Ct. 2251 (2015) was substantive, because it “changed the

substantive reach of the Armed Career Criminal Act” by striking down its residual clause

as void for vagueness, thereby “altering ‘the range of conduct or the class of persons that

the [Act] punishes.’” Welch, 136 S. Ct. at 1265 (alteration in original) (quoting Schriro,

542 U.S. at 353). Before Johnson, the Court reasoned, an offender who possessed a firearm

after three violent felony convictions faced 15 years to life in prison, even if one of those

convictions fell under the residual clause; after Johnson, the same person faced 10 years in

prison at most. See id. In other words, Johnson established that even “impeccable

factfinding procedures could not legitimate a sentence based on th[e residual] clause.” Id.

(internal quotation marks omitted).

Here, by contrast, a person who discharges a firearm during a crime of violence still

faces a 10-year mandatory minimum after Alleyne; the only difference is that the fact of

the discharge must be submitted to the jury and proven beyond a reasonable doubt. Alleyne

therefore affects the “judicial procedures by which the statute is applied”—not the “reach

of the underlying statute.” Welch, 136 S. Ct. at 1265; see also United States v. Cornette,

932 F.3d 204, 210 (4th Cir. 2019) (“Alleyne . . . created a new prospective procedural right

14
within the context of sentencing. But [it] did not do what Johnson does, which is to strike

the statutory provision under which a defendant was sentenced as unconstitutional, thus

removing the district court’s statutory authorization to sentence altogether.” (emphasis

added)); cf. Alleyne, 570 U.S. at 119 (Sotomayor, J., concurring) (explaining that the force

of stare decisis was reduced in Alleyne because it concerned “procedural rules . . . that [did]

not govern primary conduct”).

Finally, although Jones emphasizes that the Supreme Court stated in Alleyne that

aggravating facts which increase a mandatory minimum sentence are elements of “a

distinct and aggravated crime,” 570 U.S. at 116 (emphasis added), Apprendi functions in

precisely the same way; the only difference is that the aggravating facts are those which

increase the maximum sentence. See Apprendi, 530 U.S. at 490 (holding, consistent with

common-law and early American practice, that any fact that “increase[s] the prescribed

range of penalties to which a criminal defendant [is] exposed” is an element of a crime);

id. at 483 n.10 (“[F]acts that expose a defendant to a punishment greater than that otherwise

legally prescribed were by definition ‘elements’ of a separate legal offense.”). Therefore,

Welch does not support Jones’s argument, and we remain bound by our post-Apprendi

precedent.

2.

Having determined that the Alleyne rule is procedural, we must consider whether it

applies retroactively as a “watershed rule[] of criminal procedure” under the second

15
Teague category. See Welch, 136 S. Ct. at 1264 (emphasis added) (quoting Saffle, 494

U.S. at 495). Again, our post-Apprendi case law is dispositive. If Apprendi is not a

watershed rule, then neither is Alleyne.

To qualify as a watershed rule of criminal procedure, a new rule must not only “be

necessary to prevent an impermissibly large risk of an inaccurate conviction,” but also

“alter our understanding of the bedrock procedural elements essential to the fairness of a

proceeding.” Whorton v. Bockting, 549 U.S. 406, 417–18 (2007) (internal quotation marks

omitted). “This class of rules is extremely narrow.” Schriro, 542 U.S. at 352. Indeed, in

Teague, the Court observed that it was “unlikely” that any such rules “ha[d] yet to emerge.”

See 489 U.S. at 313. And since Teague, the Supreme Court has “rejected every claim that

a new rule satisfied the requirements for watershed status.” Whorton, 549 U.S. at 418. The

Court has only retrospectively cited Gideon v. Wainwright, 372 U.S. 335 (1963),

establishing the right to counsel in state felony cases, as such a watershed rule. See

Butterworth, 775 F.3d at 466 (citing Saffle, 494 U.S. at 495).

This Court has already held that Apprendi is not a watershed rule of criminal

procedure, see Sanders, see 247 F.3d at 148–51, and that decision applies with equal force

here. See Butterworth, 775 F.3d at 467 (directly applying First Circuit post-Apprendi

precedent to Alleyne, which “operate[s] as a logical extension of Apprendi,” and holding

that Alleyne also does not apply retroactively on collateral review). Therefore, we join our

fellow circuits in holding that Alleyne, like Apprendi, does not announce a watershed rule

16
of criminal procedure, 8 and thus does not apply retroactively to cases on collateral review

under Teague.

Jones offers two rejoinders to this conclusion—both addressing why, in his view,

the retroactivity of Apprendi is not dispositive of the retroactivity of Alleyne. First, he

likens Alleyne to Gideon, arguing that both cases built off past precedent and yet are

significant in their own right. We reject this analogy. Gideon, cited as the example of a

watershed rule, extended the right to counsel—as recognized in cases such as Powell v.

Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Hamilton v.

Alabama, 368 U.S. 52 (1961)—to a larger group of defendants. But this only suggests that

the fact that Alleyne built on Apprendi is not fatal to Alleyne’s status as a “watershed” rule;

it is inapposite to the more pertinent question of whether Alleyne is somehow so different

from Apprendi that we are not bound by our prior reasoning in Sanders. In other words,

watershed analysis must center on the significance of the procedural rule. See Sanders,

247 F.3d at 148 (emphasizing that watershed rules “must not only improve accuracy, but

8
See Walker v. United States, 810 F.3d 568, 574–75 (8th Cir. 2016); Butterworth,
775 F.3d at 465–68; United States v. Olvera, 775 F.3d 726, 731 (5th Cir. 2015); Hughes,
770 F.3d at 818–19; In re Mazzio, 756 F.3d 487, 491 (6th Cir. 2014); United States v.
Reyes, 755 F.3d 210, 213 (3d Cir. 2014); United States v. Redd, 735 F.3d 88, 91–92 (2d
Cir. 2013). Even those courts that have not directly addressed the watershed exception
have held that Alleyne does not apply retroactively, albeit in various procedural contexts.
See Crayton v. United States, 799 F.3d 623, 623–25 (7th Cir. 2015); United States v. Hoon,
762 F.3d 1172, 1173 (10th Cir. 2014); Jeanty v. Warden, FCI-Miami, 757 F.3d 1283,
1285–86 (11th Cir. 2014). The D.C. Circuit has held that Alleyne does not apply
retroactively, but only in an unpublished decision. See United States v. Wyche, No. 14-
3071, 2015 WL 1606908, at *1 (D.C. Cir. Mar. 24, 2015).

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also alter our understanding of the bedrock procedural elements essential to the fairness of

a proceeding” (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990))).

Raising the burden of proof and re-delegating factfinding from the judge to the jury

certainly implicate fundamental constitutional protections. Indeed, as Jones points out, the

Supreme Court (albeit before Teague, and on direct review) gave retroactive effect to In re

Winship, 397 U.S. 358 (1970) and Mullaney v. Wilbur, 421 U.S. 684 (1975)—both of

which involved application of the reasonable doubt standard. See Ivan V. v. City of New

York, 407 U.S. 203 (1972) (applying In re Winship retroactively); Hankerson v. North

Carolina, 432 U.S. 233 (1977) (applying Mullaney retroactively). But as discussed, even

Apprendi has not been deemed a watershed rule of criminal procedure. Therefore, we hold

that Alleyne is not a watershed rule, either—not because it is a mere extension of Apprendi,

but because it is not more significant than Apprendi.

Second, and relatedly, Jones appears to suggest that even if our decision in Sanders

was correct when it was decided, the importance of the Apprendi rule has only become

clearer in the intervening years. While that may very well be true, 9 the fact remains that

the second Teague exception is incredibly narrow, and Apprendi—even with the benefit of

hindsight—is still no Gideon. “Gideon’s pronouncement—that representation by counsel

9
See Alleyne, 570 U.S. at 120 (Sotomayor, J., concurring) (stating that Apprendi
“has become even more firmly rooted in the Court’s Sixth Amendment jurisprudence in
the decade since Harris”); see also Teague, 489 U.S. at 311 (acknowledging that “time and
growth in social capacity, as well as judicial perceptions of what we can rightly demand of
the adjudicatory process,” may alter our understanding of bedrock procedural elements that
are essential to a fair proceeding (quoting Mackey v. United States, 401 U.S. 667, 693–94
(1971) (Harlan, J., concurring in judgments in part and dissenting in part))).

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is fundamental to a fair trial—reshaped the legal landscape and dramatically revised the

common understanding of what the Due Process Clause demands in a criminal trial.”

Butterworth, 775 F.3d at 466 (internal quotation marks omitted). But the Apprendi rule

“represented no such seismic shift to the ‘bedrock procedural elements’ of our

constitutional protections for criminal defendants.” Id. (quoting Sepulveda, 330 F.3d at

60); cf. Crayton, 799 F.3d at 630–33 (Williams, J., concurring in judgment) (explaining

why Gideon is perhaps less sweeping than courts have led on, and why we should make

room “on the Gideon pedestal for other new rules, particularly those so important to our

criminal justice system as the reasonable-doubt standard,” but ultimately concurring in the

judgment on the Alleyne retroactivity issue because “the Supreme Court has never found a

new rule of criminal procedure to meet the Teague standard”).

III.

For the foregoing reasons, we hold that the new rule announced in Alleyne is neither

substantive nor a watershed rule of criminal procedure. Therefore, it does not apply

retroactively to cases on collateral review under Teague. As such, Jones cannot

demonstrate that a § 2255 motion, which is the ordinary recourse for federal prisoners

seeking postconviction relief, is “inadequate or ineffective to test the legality” of his

sentence in accordance with the second prong of the Wheeler test. 10 Having failed to satisfy

10
Because we find that Jones fails to meet the second Wheeler prong, we need not
address the third and fourth prongs.

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§ 2255’s savings clause, he cannot seek relief under § 2241. The district court’s denial of

Jones’s § 2241 petition is therefore

AFFIRMED.

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